Although it’s been over a decade, the rendition planes that transferred suspects to CIA black sites still cast long, dark shadows over human rights and the rule of law, and their impact is felt far beyond the United States.
More than 15 years after the U.S. “extraordinary rendition” program began, we are very far from having achieved accountability for the human rights violations, and the crimes, that were committed within it. Few criminal investigations have been opened, and fewer still have made any progress. Of the many states that were complicit in the system, only Italy has secured convictions for participation in the renditions, and those have been handed down in absentia and then undermined by later pardons. Civil cases in the U.S. and Europe have been blocked, notably by application of the state secrets doctrine, and the U.S. has failed to provide any effective remedy or reparations for the victims of human rights violations in the renditions system.
For the U.S., and the European states that co-operated in the system, the failure to hold those responsible to account, or to provide the victims with an explanation or reparations for their suffering, has left lawyers, journalists and civil society to slowly unearth the truth. Little by little, information about human rights violations that occurred within the system is disclosed: Last week, over 200 documents the CIA and Pentagon were forced to declassify and release as part of a lawsuit against two contract psychologists who designed the CIA’s “enhanced interrogation techniques”revealed new harrowing details of how the program was conceived and implemented.
But renditions are not the sole preserve of the U.S. and its allies. Years after the U.S. renditions program was officially brought to an end (see, US Executive Order 13491), there are faraway places where planes still land with suspects on board, men who have been kidnapped from the street and whisked through an airport with surprising speed, with no way to reach a judge or lawyer. They find themselves in an interrogation room in another country, and, whether they face trial or not, they are without any protection against torture.
A recent report of the International Commission of Jurists (ICJ), titled Transnational Injustices, (which has its U.S. launch at NYU today), documents such transfers in Russia and Central Asia, where renditions in violation of human rights have occurred regularly for at least the last 15 years. Such transfers involve abductions, primarily of suspects in national security-related offenses, apparently by security forces of either the host country or of the country to which the person is to be transferred. In documented cases, suspects have been abducted in Russia or Kazakhstan, and transferred to Central Asian states without any legal process.
The ICJ report analyses the national and international legal frameworks within which such transfers take place. It finds that, where national law safeguards in the extradition process work to prevent transfers, law enforcement authorities may seek to circumvent judicial scrutiny, in some cases by the use of expulsions under immigration law but also, where necessary, by resorting to abduction and rendition. The purpose of these operations is to bypass legal safeguards against refoulement (see, ICJ Guide on Migration and Human Rights Law) to countries where convictions are routinely secured through the use of torture and other violations of human rights.
Similar to the experience in the U.S. and Europe, the countries involved in renditions to Central Asia have failed to institute effective criminal investigations or prosecutions against the perpetrators of these acts. In some cases, notably in Russia, investigations have been opened but then abandoned or repeatedly postponed (see Council of Europe’s report). Where there has been some progress towards reparation, it has been before international mechanisms, most notably the European Court of Human Rights (see, among others, the case of Savriddin Dzhurayev v. Russia).
Both systems also involve the removal of the individual from the protection of the law for a crucial period. Both involve serious human rights violations including breach of the principle of non-refoulement; torture and other cruel, inhuman or degrading treatment or punishment; enforced disappearance; arbitrary detention; and unfair trial. It is an all too familiar picture.
But as the ICJ report notes, there are a number of significant differences with the U.S.-led renditions system. In Central Asia, suspects are transferred for the purposes of trial rather than interrogation. Their trial however, is likely to be for an extremely vaguely defined offense of terrorism, extremism or separatism (see, SCO Convention 2001), and the evidence that convicts them is likely to be a confession that is the product of torture or other ill-treatment.
Renditions to Central Asia are not a direct consequence of the U.S. renditions program. But the lack of accountability and reparations for U.S. renditions created a climate in which these operations by other States could flourish. All renditions in violation of human rights are dependent on the capacity of their perpetrators – institutional and individual – to operate outside of the law with impunity. To address the failures of the rule of law that we see in transfers of suspects in places like Russia and Kazakhstan, it is necessary to break the cycle of lawlessness and impunity, by imposing accountability and redress for the egregious violations of human rights that took place as part of the U.S. renditions program.
The ICJ report stresses the legitimacy and necessity of criminal justice cooperation in response to transnational crime, including terrorism. Its central finding however is that greater efforts are needed, nationally across a wide range of jurisdictions, as well as internationally, to ensure that such cooperation takes place within a rule of law framework and in accordance with the international human rights law obligations of states. Transfers of suspects should be centered exclusively on formal and law-based extradition proceedings, in which the principal decision-maker is an independent judicial authority and in which procedural guarantees are fully implemented in practice. Human rights considerations, and, in particular, the principle of non-refoulement, should be at the center of judicial decision-making in such cases.
The report concludes that transfers in violation of human rights will not be prevented in the future without accountability for the abuses of the past. Governments, prosecution services and law enforcement authorities must treat abductions, including those that involve enforced disappearance, as grave crimes and as violations of human rights (see for more, ICJ Guide on investigations and sanctions for enforced disappearance and extrajudicial execution). As such, they must be independently and promptly investigated, prosecuted and those responsible must be brought to justice.
For this to happen, it is essential that barriers to the right to truth and to accountability (see for more ICJ Guide on the fight against impunity) for human rights violations in renditions, such as the doctrine of “state secrets” be removed. The doctrine of state secrets should not be applied to information and documents linked directly or indirectly to rendition operations and abduction practices. Prohibition of the use of the state secret doctrine in cases of gross violations of human rights and crimes under international laws should be clearly incorporated into national law, with the highest legal status.
Respect for international law, and for decisions of international courts and mechanisms, is crucial in both the prevention human rights abuses in renditions, and in accountability for them. The report stresses the importance of respect for, and execution of, decisions of international human rights bodies and in particular, for interim measures of these bodies that can prevent transfer of a suspect pending the full consideration of a case.
The experience of renditions shows that, when under pressure from national security imperatives, the rule of law is a fragile construction. Once broken, it can be mended only by active measures to reestablish justice, through accountability and redress. Until there is such accountability, until there is acknowledgment of responsibility of states and individuals, and until measures of reparations are extended to the victims of rendition, the damage caused by these renditions will have continued repercussions. Unless the cycle of impunity is broken, we can have no reassurance that the violations of human rights that were once perpetrated on behalf of the U.S., and that now continue in Russia and Central Asia, will not reoccur again elsewhere.
Image: An American contractor-owned plane, suspected of transporting terrorism suspects to third countries on behalf of the CIA, taxis along a runway at Ruzyne Airport April 8, 2005 in Prague, Czech Republic. Photo by: Getty/Pavel Horejsi